Thinking about Surrogacy

I find myself starting a lot of sentences these days with: "Back when I was 20 and thought I had all the answers...." When I was 20, I was a Women's Studies major at the University of Massachusetts/Amherst, and surrogacy wasn't even a twinkle in most people's eyes yet. In fact, it was when I was in law school that the Baby M case was decided, which was the first time most of us had thought about surrogacy. I was outraged by that decision, whereby the "surrogate" who had carried the baby to term and given birth to her was found to have no parental rights whatsoever. As a woman, as a feminist, the concept that women could hire out our wombs without creating any legal relationship whatsoever with the resulting babies was, well, creepy. It seemed ... I don't know ... Orwellian or something. Too much like Margaret Atwood's The Handmaid's Tale. (If you aren't familiar with it, this is a novel from the 1980's, described on amazon.com as follows: "respected Canadian poet and novelist Atwood presents here a fable of the near future. In the Republic of Gilead, formerly the United States, far-right Schlafly/Falwell-type ideals have been carried to extremes in the monotheocratic government. The resulting society is a feminist's nightmare: women are strictly controlled, unable to have jobs or money and assigned to various classes: the chaste, childless Wives; the housekeeping Marthas; and the reproductive Handmaids, who turn their offspring over to the "morally fit" Wives.") As I say, surrogacy seemed creepy. Now, as I have matured, I find the surrogacy issue far more complex. I represent many gay men in my practice who have become parents through surrogacy, and it has been a joy to share this process with them. There are many states where adoption is hard or impossible for gay men due to some combination of sexism and homophobia, and surrogacy becomes the only way for men in these states to become parents. For many other men, the possibility of participating so intimately in bringing a child into the world would be only a dream without surrogacy, and helping make these dreams come true is one of the best things about doing the kind of law I do. But still.... I recently bought a refrigerator magnet that I've stuck on the file cabinet in my office. It says: "Believe those who seek the truth. Doubt those who find it." I continue to seek my full truth on the surrogacy issue. So, as we head into 2006, here are some of the "philosophical" surrogacy-related issues I continue to grapple with: What are the implications of moving toward pre-birth determinations of parenthood, in terms of abortion rights? In these times of increasingly scary attacks on a woman's right to procreative choice, aren't we aligning with the anti-abortion movement when we fight to have "unborn children" recognized as legal beings by the courts? If we get prebirth parentage orders for couples using surrogacy, does this mean they can prevent their "carriers" from getting an abortion? Should it? And while we're on the issue of the rights of gestational carriers, do we really believe that a woman who carries a baby to term and gives birth should have no legal rights whatsoever regarding that baby? As a woman who has given birth twice myself, I can attest that the experience of gestating a baby -- feeling it begin to move, sharing my blood, oxygen and nourishment with it for 8 months -- and then bringing it out into the world through childbirth -- is the most profoundly intimate experience of my life. Genetics, by my reckoning, is the least of it. So do we want the law to be that the woman who just did all that has no right to ever see the baby again, regardless of her heartfelt wishes and desires? Isn't there a very good reason that a woman can't consent to an adoption until after the baby is actually born? Should gestational carriers be afforded similar protections, if only in terms of having limited visitation rights if they want them? Is this a scenario where "open adoption" could be a model (i.e. where the intended parents get the baby, but the surrogate has the right to continued contact of some kind)? I don't have answers to these questions. Nor am I sure that clear "answers" exist. What I know is this: I intend to continue fighting hard for my clients involved in the surrogacy process, while I also continue to grapple with issues such as these, which once seemed so easy.... Happy New Year!